The Wire

Maketa, Presley dismissed from federal lawsuit

As prosecutors gear up for a retrial of former El Paso County Sheriff Terry Maketa, the 10th Circuit Court of Appeals has reversed a lower court ruling in a civil case brought by five sheriff's personnel accusing Maketa and others of taking illegal "adverse employment actions" against them.

A three-judge panel ruled in a decision filed Jan. 17, that Maketa and then-Undersheriff Paula Presley, also named in the lawsuit, are entitled to qualified immunity from the claims.

They also named the Board of County Commissioners, Sheriff's Office, current Sheriff Bill Elder and current Undersheriff Joe Breister. The Sheriff's Office, Elder and Breister have since been dismissed.

Andrew Ringel, a Denver attorney who represented Maketa, says the ruling means Maketa and Presley have qualified immunity against all claims so the claims have been dismissed. He declined to comment further.

Maketa, who served as sheriff from 2003 to Dec. 31, 2014, faces criminal charges filed in May 2016 alleging he threatened to end a jail contract if the contractor didn't terminate an employee who wasn't Maketa's political ally, among other allegations. A trial in July ended in acquittal on witness tampering, conspiracy to commit witness tampering and official misconduct charges. Several other charges ended with a hung jury. A new trial begins Jan. 23.

As for the civil case brought by the employees, U.S. District Court Judge Christine Arguello originally ruled in March 2016 that claims in the lawsuit would be dismissed except:

a. One consolidated claim for relief for retaliation related to the EEOC
complaint and the BOCC request for investigation by Plaintiffs Lincoln, King, and Gehrett against Defendants Maketa and Presley;

b. Plaintiff Peck’s Third Claim for Relief for retaliation asserted against
Defendant Maketa;

d. Plaintiffs Lincoln, King, and Gehrett’s Sixth Claim for Relief for Title VII retaliation asserted against Defendant Board of County Commissioners of the County of El Paso.

That meant that the plaintiffs could have pursued those claims in court and possibly prevailed, but since Maketa and Presley appealed that ruling, and it was reversed, the plaintiffs can't be pursued for those claims because they have governmental immunity.

The five employees (the plaintiffs), all of whom remain employed at the Sheriff's Office with the exception of Stone, who retired, variously claimed Maketa and Presley punished them for:

• favoring a sheriff's candidate the two didn't support,
• for not giving a scripted account regarding a so-called missing internal affairs file for Elder during his tenure in the 1990s,
• for making complaints about Maketa that indicated the sheriff showed favoritism to employees based on sexual favors
• and creating a hostile work environment based on that favoritism and other actions.

The 10th Circuit Court of Appeals ruled:

The assertion of qualified immunity imposes a heavy burden on the plaintiffs, requiring them to point to existing precedent or the clear weight of authority establishing the existence of a constitutional violation. None of the plaintiffs has met that burden. Lt. Peck has not demonstrated that her statement to the media was clearly made as a private citizen rather than as a public employee. Nor has Sgt. Stone or the Commanders shown that the defendants’ alleged conduct would clearly constitute adverse employment actions. Accordingly, Sheriff Maketa and Undersheriff Presley were entitled to qualified immunity on all of the claims.

El Paso County spokesperson Dave Rose sent the following response on behalf of the county:

El Paso County is still studying the ruling and evaluating its options going forward.

The county applauds the court for clarifying the complex legal concept of “qualified immunity” as it relates this case. The county also notes that in its decision the court affirmed the county’s employment related actions to ensure that these individuals were placed on administrative leave so they would not lose pay and benefits pending the outcome of an outside legal review of facts and circumstances in the Sheriff’s Office during that difficult time period.

Local attorney Ed Farry who represented the five sheriff's personnel did not respond to an email seeking comment.